1. ' KHAWAJA NAVEED AHMED, J.---This order will dispose of both Criminal Misc. Application No,184 of 2008 filed by applicant Muhammad Zafar Saleem and Cr. Miscellaneous Application No,187 of 2008 filed by applicant Syed Shahzad Hayat. Both these Cr. Misc Applications have arisen out of the case F.I.R. No,26 of 2008 under sections 147/148/149/452/395/ 342/425/337H(ii) of P.P.C, Police Station Gabol Town Industrial Area, Karachi. The offence was allegedly committed on 264-2008 while the F.I.R. Was registered on 8-5-2008 under the orders of District & Sessions Judge, Karachi Central.
2. ' The brief facts of the case, as narrated in the F.I.R. Are that complainant Asif Bashir had stated in his statement recorded under section 154, Cr.P.C. That he is running a factory in the name of Sharja Water Jet on Plots Nos.ST/36, 37, 38 and 39 in Sector 16 B, Labour Square, New Karachi, Karachi. The case of the complainant is that he had purchased these plots from Haider Ali, Niaz Ahmed, Akhtar Jawaid, and Abdul Quddus, respectively. After purchasing the plots, he had raised construction on it through his own resources. It is alleged that Director General of Sindh Welfare Board, namely, Muhammad Zafar Saleem issued threats that the said plots were not owned by Messrs Haider Ali, Niaz Ahmed, Akhtar Jawaid, and Abdul Quddus and as such he will demolish the construction raised on the said plots. It is stated in the F.I.R. That complainant had filed suits Nos. 243, 244, 245 and 246 of 2008 in the Court of Senior Civil Judge Karachi Central. Notices of the said suits have been served upon the defendants and suits are pending adjudication.
3. ' The complainant had stated in F.I.R. That on 26-4-2008 at 4-00 p.m. He had parked his car No,CC- 48, outside his plots and had gone along with his friend, namely, Iqbal to the factory of his friend in Sector 12D. At about 7-00 p.m. When complainant came back, he had seen that glasses of car were broken and wall of his factory was also demolished. He alleged that his licensed pistol .9 mm Serial No,50102 and short gun .12 bore No, HAC 4513 were missing. The Chowkidar Asmatullah was also missing. He found his friend Ismail alias Lala, Muhammad Azam, and Sajid standing at some distance. On complainant's query, they have informed him that 40/45 persons of Sindh Welfare Board along with their Director General Muhammad Zafar Saleem had come and had fired in the air compelling them to run away. They had beaten Chowkidar Asmatullah and after putting him in their car they have taken him away. It is stated that one mobile phone and cash of Rs,17,000 were snatched from Chowkidar Asmatullah, one mobile phone and cash amounting to Rs,17,500 were snatched from Ismail, one mobile phone and cash amounting to Rs,1,50,000 were snatched from Muhammad Azam and one mobile phone of Sajid was also taken away by them. Complainant had alleged that he had immediately moved an application to the Police Station but no action was taken by the police. Thereafter he had filed application in the Court of Sessions Judge, Central, who was pleased to order registration of F.I.R.
4. In compliance of the order of the Sessions Judge, the police had registered the F.I.R. And thereafter had investigated the case. The police at the conclusion of investigation had found the F.I.R. As. A false and had submitted their report under section 173, Cr.P.C. As "B" Class in the Court of XIX Civil Judge & Judicial Magistrate, Karachi Central who had not accepted the same and as such the above named applicants had Criminal Miscellaneous this Court separately.
5. ' Initially investigation was conducted by S.-I. Muhammad Akram Sindhu during 14-5-2008, who recorded statements of witnesses namely Ghazanfar Ali son of M. Ramzan, Zakir Shah son of Fazal Shah, Samiullah son of Jannat Gul and M. Hussain son of Hazrat Khan under section 161, Cr.P.C. The witnesses in their statements have disclosed that on 25-4-2008 at 6-00 p.m. Some people brought Ejaz Misrti and at 9-00 p.m. In their presence and had started raising wall on the plot and continued work for whole night and completed the walls. Prior to that there was no construction of the walls.
6. Thereafter on 26-4-2008 some people came and demolished the said walls and went away and during the said process no firing scuffle or any incident took place. On 10-5-2006 A.S-I. Ghulam Rasool of Gabol Town Police Station had found a repeater No, HAC 4512 from behind the office of Sindh Welfare Board, which was alleged to have been snatched as per complainant and the same seems to be thrown by the complainant just to support his case. Later on investigation was assigned to S.-I. Mussadiq Rafiq on 15-5-2008 and on 16-5-2008. He gave notice under section 160, Cr.P.C. To the complainant for recording his statement as well as to bring his witnesses. The said notice was received by the brother of the complainant namely Amir Hussain on 17-5-2008. The complainant had sent the statements of his witnesses namely Sajid Mahmood son of Bashir Ahmed Asmatullah son of Atta Muhammad Ismail @ Lala s/o Babu, Muhammad Azam son of M.
7. Ishaque, M. Ramzan son of Abdullah, M. Yaseen son of Khuda Bux through TCS to the Investigating Officer. Inspector Mussadiq Rafiq had made phone calls to complainant and asked him to produce the witnesses as the written statements were not acceptable. On 18-5-2008 the complainant came at police station, whom Investigating Officer, Inspector Mussadiq Rafiq asked him to produce the sellers of disputed property and also asked him to give his statement, but complainant stated that his F.I.R. Is his statement and was reluctant to produce the persons from whom he purchased the disputed plots. He stated that he has already sent the written statements of the witnesses.
8. Thereafter on 24-5-2008, the Investigating Officer wrote a letter to D.G. Sindh Welfare Board and asked him about the ownership of the disputed plots to which D.G replied in writing that the disputed plots are the property of Sindh Welfare Board. On 27-5-2008, the Investigating Officer, Inspector Mussadiq Rafiq inspected the place of incident on pointation of complainant, where an old wall was still there, whereas the new walls were lying erased/removed. He had prepared as memo. And asked the complainant to bring witnesses to sign the same, but the complainant did not find witnesses due to which same was signed by the complainant and his brother Sajid Mehmood. On 28-5-2008, the Investigating Officer, Inspector Mussadiq Rafiq sent notice under section 160, Cr.P.C. To Hyder Ali son of Mehndi Hassan Akhtar Javed son of Muhammad Islam, Abdul Qudoos son of Abdul Rehman and Ejjaz Ahmed son of Sameer from whom complainant alleged to have purchased the disputed plots, but none of them came forward. However on 30-5-2003 brother of Hyder Ali son of Mehndi Hassan stated in his statement that his brother Hyder Ali is neither at his house nor he knew his whereabouts. The Investigating Officer, Inspector Mussadiq Rafiq in his report has stated that during investigation, the complainant had not produced any proof in support of alleged crime and from investigation it reflects that the complainant with the help of Court tried to usurp the plots belonging to Sindh Welfare Board and had lodged F.I.R. This is a false case and in this respect he submitted report under section 168, Cr.P.C. High-ups in police department gave approval on 5-7-2003 for submitting "B" Class report in this matter.
9. ' I have heard the learned counsel for the parties and have also perused case laws on the subject and have gone through the impugned order, F.I.R, statements of witnesses and Police Report.
10. ' Mr. Aamir Mansoob Qureshi, Advocate for applicant in Cr. Misc. Application No,187 of 2008 and Mr. M. Ilyas Khan, Advocate for applicant in Cr. Misc Application No,184 of 2008 have argued that the complainant is a land grabber and has illegally encroached the land belonging to Workers Welfare Board, Government of Sindh.
11. It is stated that three police officers, namely A.S-I. Rafiq Sajid, Inspector S.I.O. Qudrat Sher Lodhi and Inspector SIO Musaddiq Hussain had investigated the case and all of them had B found it a false case. It is also stated that apart from the above Investigating Officers, Muhammad Akram Sindho had also investigated the case and he had also found the F.I.R. As false.
12. ' Mr. M. Ilyas Khan, learned counsel for the applicant in Cr. Misc. No,184 of 2008, has argued that under Criminal Procedure Code, a Magistrate is entrusted with diverse duties anci in discharging the duty, he does not always function as a Court, some of his powers and duties under the Code are administrative, executive or ministerial in nature. In support of his contention he has relied upon the authorities as under:--
(1) PLD 1985 SC 62 Bahadur & another v. The State and another.
(2) 1970 PCr.LJ 178.
(3) 2000 PCr.LJ 520 Soofi Abdul Qadir v. The State.
13. 'Mr. M. Ilyas Khan has further argued that in Full Bench case of Wazir v. The State reported in PLD 1962 W.P. Lahore 405, Lahore High Court has observed that:-- "In view of the fact that this matter has been decided in a Division Bench, I would refer the case to a Full Bench. The questions to be answered are:--
(1) Whether when a challan is received by a Magistrate, he takes cognizance of the case?
(2) Whether in the event of a second report by the police recommending cancellation of the case, he has accepted the report before he has started with the trial in pursuance of the first challan?
14. ' We are of the opinion that it would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a police challan has been presented before him. When a police officer makes the report under section 173 of the Code of Criminal Procedure that an offence has been committed, the section itself does not say what steps the Magistrate will take and there is no further provision to meet, the situation before we reach section 190, which provides that a Magistrate may take cognizance of an offence upon a police report. In other words, the police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that some thing more will be done to show that the Magistrate intends to start the proceedings. In a case where a Magistrate cannot take cognizance of an offence without the sanction of Government to prosecute and the sanction arrives a day after the police report is received by the Magistrate it will be unreasonable to argue that the Magistrate had taken cognizance of the offence before the sanction had arrived. He may keep the case waiting until the sanction arrives and then pass some order to show that he intends to hold a trial. In the case of an incomplete challan, as in this case, although the Magistrate could start the trial, if he keeps it waiting until another report should come or until whatever is waiting should be made up, he clearly does not take cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case.
2. We were told by learned counsel for the respondent that the cancellation could not be under subsection (3) of section 173, and that apart from that subsection there was no other provision which enabled a Magistrate to cancel a case. Subsection (3), he argued, was applicable to a case where the accused had been released on his bond under section 169, which provides hat if it appears to the police officer that there is no sufficient evidence to justify the forwarding of the case to a Magistrate, such officer shall release the accused on a bond requiring him to appear before a Magistrate empowered to take cognizance of the offence and to try the accused or to commit him for trial. If this argument is accepted, then, in the event of an omission by the police officer to release the accused on a bond, the Magistrate will not be empowered to discharge the accused or to cancel the case even if the police officer had reported that there was no sufficient evidence against the accused. We think that such power is inherent in section 173 read with section 190 of the Code of Criminal Procedure, though the language of subsection (3) does not directly apply to the case."
3. We answer the reference accordingly. The facts of the above reported case are not similar to the facts of the case in hand. However, for academic purpose I have quoted the view of Full Bench above. In the present case, the impugned order of the learned Magistrate is reproduced hereunder for ready reference:-- " I have heard the learned counsel for the complainant 1.0. Inspector so also material available on record. Heard learned Advocate for accused persons as well I see that the Investigating Officer in his subjected report stated to have verified the status of the disputed plot from Sindh Welfare Board whereas the Director General thereof is already nominated in the present crime. He ought to have verified the ownership of disputed plots from the concerned Government authorities for an impartial investigation. Likewise it is also stated with the said report that demolished walls were also available at the site which fact itself reflects light that there was construction of the walls and demolition thereof also taken place, there is every possibility of occurrence of any alleged offence.
15. As per report of 1.0 mostly emphasis on the score that the complainant sent the statement of his witness through courier services and have failed to produce the witnesses before him. In this Regard the contention of complainant's side is that the accused person are highly influential persons and threatened to involve them in false cases. Under the above circumstances in my impartial opinion, the material available on record, requires further probe only by the trial of the Court of law. Hence, I am not inclined to concur with the report C in "B" class and same stands disapproved. The Investigating Officer is directed to submit the final report challan and also to produce the accused in person".
16. Mr. M. Ilyas Khan has further argued that offences alleged in the F.I.R are triable by the Sessions Courts and Magistrate could not have directed submission of challan. Magistrate could only forward the matter to the learned Sessions Judge who could have taken the cognizance of the alleged offence. He has further submitted that his case is exclusively triable by the Court of Sessions. Sections 169,170 and 173, Cr.P.C. Read with Police Rules 24.7 and 25.57 relates to the disposal of the F.I.R by Investigating Officer. He has stated that Investigating Officer is competent to dispose of the F.I.R after having found the same as false, founded on mistake of fact or law and dispute of civil nature or having been found the same as false. It is argued that Muhammad Zafar Saleem is Grade 20 Officer and it is not his personal case as the land belongs to the Government of Sindh and being Director General, it is his duty to protect the government land. Any action taken by him is a bona fide action and is protected under the law and as such he cannot be prosecuted for a legal action taken by him under the law in discharge of his duties.
17. ' Ms. Fatima Jameela Jatoi, Learned counsel for the State has supported the impugned order and has stated that the Magistrate has powers to give directions to the Investigating Officer from submission of challan.
18. ' Mr. Aamir Mansoob Qureshi, learned counsel for the applicant in Cr. Miscellaneous No, 187 of 2008 has argued that letter dated 24-4-2008 has been written by Muhammad Zafar Saleem Dirctor General. He has further stated that the accused are government servants and Anti Corruption Court can take cognizance against them after compliance of section 197, Cr.P.C. Which is in respect of sanction to prosecute government servants if offence is committed during discharge of their duties. He has further argued that the case under section 395; P.P.C. Is exclusively triable by the Sessions Courts. He has drawn my attention to page 31 of the case file of this Court in Cr.
19. Miscellaneous. No, 184 of 2008 on which notification regarding Zafar Saleem working in BPS 19 is available in Cr. Misc. No,187 of 2008 at page 75, letter addressed by Zafar Saleem to S.H.O. Gabol Town Police Station against the accused persons is available, which is much prior to the present F.I.R. He has shown pages 77 and 83 of the case file and has stated that all these documents existed much prior to the lodging of the present F.I.R by the complainant in this case.
20. ' In support of his contentions, he has relied upon:--
(1) 2004 PCr.LJ 1023 Farooq Sumar v. The State and others.
(2) 2006 M LD 663 Dawood Khan and 8 others v. Ahsan-ur-Rehman and 2 others.
(3) 1985 SCMR 62 Bahadur and another v. The State and another.
(4) 2007 M LD 1247 Karachi Muhammad Aslam Khan v. The State.
(5) 1997 SCM R 304 Muhammad Sharif and 8 others v. The State and another.
(6) 2006 PCr.LJ 6518 Ch. Muhammad Ashraf v. The State.
21. In 2006 PCr.LJ 518, Ch. "5. Undisputedly, the Magistrate is competent to pass any order on the report submitted by the Investigating Officer and take cognizance of the offence or even order further investigation into the matter. However, any order means judicious and just order and not an arbitrary order without reasons and justification. The Magistrate is required to consider the report under section 173, Cr.P.C.
22. In the light of the material collected during the investigation and then pass an order. It is true that sometimes the Investigating Officer do not investigate the matter properly and sincerely and submit unjustified reports even then it is not expected to disagree with it by a non-speaking order without any indication about considering the material collected during the investigation.
23. ' Although the power conferred upon the Magistrate is administrative in nature and the order passed by him is also an administrative order yet that has to be just and judicious one and not an arbitrary. The order Impugned through present application is surely an arbitrary one as it does not indicate that the learned Magistrate did brother to consider the material collected during the investigation. Nor does it contain any reason for disagreeing with the opinion of the Investigating Officer".
24. ' In the case reported in 2000 "5. In terms of section 169, Cr.P.0 upon investigation of a. Cognizable offence if it appears to the Officer Incharge of the police station or an officer making investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate, such officer is empowered to release the accused if he be in custody on his executing a bond with a direction to appear before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial, if and when so required. (emphasis underlined). Under the provisions of section 170, Cr.P.C. If it appears to the Investigating Officer that there is sufficient evidence or reasonable ground to proceed, he shall forward the accused to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial with a further stipulation that if the offence be non-bailable, he shall forward the accused in custody, but if the offence be bailable and the accused is able to furnish security, he shall obtain security from him for his appearance before such Magistrate on a day fixed for his attendance. Again section 173, Cr.P.C. Postulates that every investigation under Chapter XIV shall be completed without unnecessary delay, and, as soon as it is completed, the office incharge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, with necessary particulars of the offence, accused and the names of the parties who may be acquainted with the circumstances of the case. Subsection (3) ordains that whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit."
25. ' In the other case of Muhammad Sharif and 8 others v. The State reported in 1979 SCM R 304, the Honourable Supreme Court has observed as under:-- "After numerous investigations conducted the level of Deputy Superintendent of Police and Assistant Superintendent of Police, the local police ultimately got the case cancelled and had the said appellant discharged. Madad Khan complainant there upon invoked the jurisdiction of the High Court under section 561-A, Cr . P .0 . For quashment of the order dated 25-11-1992 whereby the learned Magistrate of 1st Class Mianwali, had cancelled the case and discharged the appellants. A learned Single Judge in Chambers of the High Court after hearing the learned counsel for the parties before us observed that out of the four Investigating Officers two had held the accused in both the cases guilty while the other two had come to the conclusion that they were innocent; that "they gave reasons for their respective pleadings and when the DSP Headquarters, Mianwali, probably one the directions of S.P. Mianwali, moved the Illaqa Magistrate for the discharge of the accused, he proceeded to oblige him readily by writing short orders and discharged the accused."
26. (Underlining is for the emphasis). According to the learned Judge in the High Court, it was the duty of the learned Magistrate to have carefully gone through the findings of all the four Investigating Officers disagreeing with the recommendations of the Investigating Officer but he did not adopt this course and proceeded to approve the report of the last Investigating Officer liy short orders. In the opinion of the learned Judge, these orders did not satisfy the requirements of law, therefore, he was persuaded to quash them and remit the cases for re-investigation to some other senior officer of the Range Crimes."
27. ' Leave to appeal was granted in both the cases to examine whether the learned Judge in Chambers of High Court was justified to have set aside the impugned orders of the Magistrate on the above noted grounds".
28. ' The Honourable Supreme Court had decided the above noted contentions as under:-- "In the light of these distinguishing features of the case, interference by the High Court in the orders passed by the learned Magistrate was thus unwarranted. The dictum laid down in the case of Arif Ali Khan supra is, therefore, not applicable to the case in hand. On these considerations, the learned Judge in the High Court, in our view, was wholly unjustified in setting aside the orders of the learned Magistrate under section 561-A, Cr.P.C. We would, therefore, accept these appeals, set aside the impugned order of the High Court and maintain the orders of the learned Magistrate whereby concurring with the police report submitted under section 173, Cr. P .0 . The appellants were discharged and the criminal case registered under sections 10 and 11 of the Ordinance was cancelled."
29. 'I also had an opportunity to lay my hands on Rules 24.7 and 25.57 of Police Rules, 1934, which are applicable to the Province of Sindh. According to Rule 24.7 no F.I.R can be cancelled without the orders of first Class Magistrate. In Rule 25.57 the prosecution agency is authorized to suspend the investigation and submit report to the Court in Form 25.57(2). A report under section 173, Cr.P.C. Will be submitted in Court.
30. ' In this authority, the Court has further observed that;-- "That offence is triable by the Sessions Court the Magistrate had no power to cancel the F.I.R."
31. ' Almost same view has been taken by the Court in the authorities mentioned above.
32. ' Regardless of the fact whether the Magistrate had applied her judicial mind to the facts stated in the report submitted by the police, since she was not vested with the jurisdiction to take cognizance of the offence, I am of the definite view that she acted without jurisdiction and the orders passed by her are coram non judice and are accordingly quashed. Resultantly, the petitions succeed and are hereby allowed.
33. The matter may be placed before the learned Sessions Judge (Central Karachi) who will transfer the case to some other Magistrate for passing appropriate orders on the police report.